Good morning, Chairman Specter, ranking Member Leahy, and Members of the Committee.

Thank
you for the opportunity to appear before the Committee to testify about
a subject that is of grave importance to both our national security and
the integrity of our republican form of government. The Supreme Court's
decision in Hamdan v. Rumsfeld has far-reaching implications for the
President's ability to defend our national security and perform his
duties as Commander-in-Chief, and raises fundamental
separation-of-powers issues that go to the core of our constitutional
structure. No issue deserves more thoughtful consideration from our
elected representatives than ensuring that the American people are
defended--in a manner consistent with our political traditions and
values--from a savage terrorist enemy that deliberately targets
civilians in an effort to destroy our way of life.

From 2001
to 2004, I served as the Solicitor General of the United States. In
that capacity, I had the privilege and the responsibility to supervise
the representation of the United States in several cases involving our
Nation's defense against terrorism. These include Rasul v. Bush, 542
U.S. 466 (2004), a precursor to the Hamdan case in which the Supreme
Court held that federal courts have jurisdiction to entertain habeas
corpus petitions filed on behalf of terrorist combatants detained in
Guantanamo Bay and elsewhere in the world outside United States
sovereign territory, and Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which
addressed the President's authority to capture and detain an American
citizen who took up arms against the United States overseas as an
"enemy combatant." In connection with this responsibility, and as a
consequence of my service as Assistant Attorney General for the Office
of Legal Counsel from 1981 through 1984, I have had the opportunity to
consider at great length the relationship between our three branches of
government in time of war. As Solicitor General, I also had the
responsibility to represent the government in terrorism-related cases
in the lower courts, which required my office and its exceptionally
talented staff to make careful judgments about the respective wartime
responsibilities of the legislative, executive, and judicial branches.

In
Hamdan, a majority of the Supreme Court endorsed three significant
holdings: first, that, notwithstanding the Detainee Treatment Act,
which Congress enacted to foreclose attempts by Guantanamo Bay
detainees to seek habeas corpus relief in federal courts, those courts
nonetheless retain jurisdiction over habeas petitions filed before the
Act went into effect; second, that the President's military commission
structure is inconsistent with the Uniform Code of Military Justice;
and third, that Common Article 3 of the Geneva Conventions applies to
the conflict with al Qaeda.

It is altogether necessary and
appropriate for Congress to consider a legislative response to the
Supreme Court's decision in Hamdan. Indeed, all eight Justices who
participated in the case--Chief Justice Roberts was recused-- recognized
that Congressional action could cure any perceived inadequacies in the
military commissions established by the President.

Justice
Breyer's concurring opinion (which was joined by Justices Kennedy,
Souter, and Ginsburg) explicitly invited the President to reach out to
Congress, observing that "nothing prevents the President from returning
to Congress to seek the authority he believes is necessary." Hamdan,
548 U.S. at _ (slip op. at 1) (Breyer, J., concurring).

Justice
Kennedy's concurring opinion (which was joined by Justices Souter,
Ginsburg, and Breyer) similarly observed that "[i]f Congress, after due
consideration, deems it appropriate to change the controlling statutes,
in conformance with the Constitution and other laws, it has the power
and prerogative to do so." Id. at _ (slip op. at 2) (Kennedy, J.,
concurring).

Indeed, in his Hamdan concurrence, Justice
Kennedy invoked Justice Jackson's well-known concurring opinion in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which
articulated a three-part framework for analyzing the relationship
between executive and legislative authority. The President's authority
is at its maximum, Justice Jackson explained, "[w]hen the President
acts pursuant to an express or implied authorization of Congress." Id.
At 635 (Jackson, J., concurring). "When the President acts in absence
of either a Congressional grant or denial of authority," Justice
Jackson continued, "he can only rely upon his own independent powers,
but there is a zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain." Id.
at 637. And "[w]hen the President takes measures incompatible with the
express or implied will of Congress, his power is at its lowest ebb."
Id.

Relying upon the Youngstown paradigm, Justice Kennedy
concluded in his Hamdan concurring opinion, incorrectly in my view,
that the military commissions established by the President presented "a
conflict between Presidential and congressional action," and that the
case therefore fell within Justice Jackson's third category, where the
President's authority is at its lowest point. Hamdan, 548 U.S. at _
(slip op. at 4) (Kennedy, J., concurring). If Congress responds to
Hamdan by explicitly conferring on the President broad authority to
establish military commissions, the Court's analysis makes clear that
the President would be acting at the height of his authority--he would
be exercising both the inherent constitutional powers of the
Commander-in-Chief and the statutory powers granted to him by Congress.

In response to the Justices' invitation to implement a
legislative solution, it is my opinion that Congress should restore the
status quo that existed prior to the Rasul decision and clarify that
the federal courts do not possess jurisdiction over pending or future
habeas petitions filed by Guantanamo Bay detainees or other noncitizen
enemy combatants detained outside the territory of the United States.
Congress should also, I submit, expressly authorize the use of military
commissions to try terrorists and others accused of war crimes.

Hamdan
did not address the President's inherent power to establish military
commissions absent Congressional authorization in cases of "controlling
necessity." See Hamdan, 548 U.S. at _ (slip op. at 23) ("Whether . . .
the President may constitutionally convene military commissions without
the sanction of Congress in cases of controlling necessity is a
question this Court has not answered definitively, and need not answer
today."). According to the Court, the issue before it was limited to
whether the President may "disregard limitations that Congress has, in
the proper exercise of its own powers, placed on his powers." Id.

I CONGRESS SHOULD ACT TO CONFIRM THAT THE FEDERAL HABEAS STATUTE DOES NOT GRANT JURISDICTION OVER PETITIONS FILED BY ENEMY COMBATANT ALIENS HELD OUTSIDE THE SOVEREIGN TERRITORY OF THE UNITED STATES.

In
Rasul v. Bush, 542 U.S. 466 (2004), the Supreme Court overturned a
precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950), that had stood
for fifty years, and held, for the first time, that the federal habeas
statute, 28 U.S.C. § 2241, grants United States courts jurisdiction to
entertain habeas petitions filed by aliens detained beyond the
sovereign territory of the United States (in that case, Guantanamo Bay,
Cuba). In the Hamdan decision, the Court held that legislation enacted
in response to Rasul depriving the federal courts of jurisdiction in
such cases does not apply to habeas petitions pending when that
legislation was enacted.

Unless Congress acts, the Court's
interpretation of section 2241 will have farreaching and adverse
consequences for the conduct of this Nation's defense against terrorist
attacks on Americans and American facilities here and abroad.

Since
the emergence of the writ of habeas corpus several centuries ago in
English common-law courts, the writ has never been available to enemy
aliens held outside of a country's sovereign territory. The text of
section 2241--which authorizes federal courts to grant the writ "within
their respective jurisdictions"-- provides no indication that Congress
intended to depart from this long-standing historical principle. By
requiring the President to justify his military decisions in federal
courts, Rasul imposed a substantial and unprecedented burden on the
President's ability to react with vigor and dispatch to homeland
security threats.

Congress responded to the Rasul decision by
enacting the Detainee Treatment Act of 2005 ("DTA"), which amended
section 2241 to provide explicitly that "no court, justice, or judge
shall have jurisdiction to hear or consider an application for a writ
of habeas corpus filed by or on behalf of an alien detained by the
Department of Defense at Guantanamo Bay, Cuba." Pub. L. No. 109-148, §
1005(e), 119 Stat. 2739, 2741 (emphasis added).

Notwithstanding
this clearly stated statutory language withdrawing the jurisdiction
created by the Rasul decision for the federal courts to entertain
habeas petitions filed by Guantanamo Bay detainees and a companion
provision plainly making this statutory measure effective on enactment,
the Hamdan Court held that the DTA does not apply to petitions pending
at the time the measure was signed into law. 548 U.S. at _ (slip op. at
7-20). That holding not only enabled the Court to reach the merits of
Hamdan's claim challenging the validity of the military commission
system, but also requires the lower federal courts to adjudicate the
hundreds of other habeas petitions filed by Guantanamo Bay detainees
that were pending at the time of the DTA's enactment. Id. at _ (slip
op. at 15) (Scalia, J., dissenting). As Justice Scalia observed in his
dissenting opinion in Hamdan, the "Court's interpretation [of the DTA]
transforms a provision abolishing jurisdiction over all
Guantanamo-related habeas petitions into a provision that retains
jurisdiction over cases sufficiently numerous to keep the courts busy
for years to come." Id. Until the Supreme Court's decision in Rasul, no
court had ever suggested that aliens captured during hostilities and
held outside of the United States' sovereign territory could challenge
their captivity through a petition for a writ of habeas corpus filed in
a U.S. court. This was true at the time of the Founding and continued
to be true throughout the military confrontations of the Twentieth
Century. Indeed, none of the two million prisoners of war held by the
United States at the conclusion of World War II was deemed authorized
to file a habeas petition in a U.S. court challenging the terms or
conditions of his confinement.

One can only imagine the chaos
that would have been introduced into the effort to win World War II if
each of these detainees, or lawyers on their behalf, had been permitted
to file petitions in U.S. courts immediately upon their capture in
Europe, Africa or in the Islands of the Pacific Ocean. Indeed, in the
wake of Rasul, a habeas petition was even apparently filed on behalf of
Saddam Hussein before he was handed over to Iraqi authorities. As the
Supreme Court plainly recognized in concluding that it lacked
jurisdiction to hear a habeas petition filed by German prisoners held
by American authorities in occupied Germany, "[e]xecutive power over
enemy aliens, undelayed and unhampered by litigation, has been deemed,
throughout history, essential to war-time security." Eisentrager, 339
U.S. at 774 (emphases added). Rasul's conclusion that federal courts
may hear habeas petitions filed by Guantanamo Bay detainees thus
overturned several centuries of precedent concerning the jurisdictional
reach of the writ of habeas corpus and introduced incalculable
complications in the President's ability to conduct an effective
defense against unprincipled and savage terrorists.

Furthermore,
the availability of habeas relief to Guantanamo Bay detainees does
violence to the separation-of-powers principles embodied in our
constitutional structure. The Founders were keenly aware of the need
for swift, decisive action to safeguard national security. They
designated the President as the sole Commander-in-Chief of the Armed
Forces precisely because, as Alexander Hamilton explained, "[o]f all
the cares or concerns of government, the direction of war most
peculiarly demands those qualities which distinguish the exercise of
power by a single hand." The Federalist No. 70, at 471 (Alexander
Hamilton) (J. Cooke ed., 1961). Because courts have limited familiarity
with battlefield conditions; must move slowly, deliberately, and
collectively; lack access to military intelligence; and may possess an
incomplete understanding of relevant foreign policy considerations,
they are--by their very institutional design--illsuited to micro-manage
on a real-time basis the decisions that the Executive must make daily,
indeed hourly, in his capacity as Commander-in-Chief. As Justice
Jackson observed in another context, "It would be intolerable that the
courts, without the relevant information, should review and perhaps
nullify actions of the Executive taken on information properly held
secret. . . . [T]he very nature of executive decisions as to foreign
policy is political, not judicial. . . . They are decisions of a kind
for which the Judiciary has neither aptitude, facilities nor
responsibility and which has long been held to belong in the domain of
political power not subject to judicial intrusion or inquiry." Chicago
& S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111
(1948).

The Rasul decision also imposes a tremendous burden
on our military personnel in the field. To begin with, as the Supreme
Court has explained, authorizing courts--at the behest of enemy
aliens--to second guess the decisions of military leaders will "diminish
the prestige of our commanders, not only with enemies but with wavering
neutrals." Eisentrager, 339 U.S. at 779. Indeed, "[i]t would be
difficult to devise more effective fettering of a field commander than
to allow the very enemies he is ordered to reduce to submission to call
him to account in his own civil courts and divert his efforts and
attention from the military offensive abroad to the legal defensive at
home." Id. The Rasul decision raises an endless stream of practical
problems: Will commanders be summoned from the field to give evidence
and to explain the circumstances regarding the capture of combatants?
Will detainees have access to counsel? Do they have the right to
appointed counsel? Miranda warnings? The right to speedy trials? Will
the government be required to disclose sensitive intelligence
information to demonstrate that its detention of enemy combatants is
justified?4 These questions are just a few examples, but they serve to
demonstrate how disruptive the extension of habeas relief to enemy
combatants could become to the military's ability to focus its
resources and undivided attention on defending our people from
terrorists.

Congress should act to restore the pre-Rasul
status quo. The Constitution places the decision to detain an enemy
alien squarely within the exclusive domain of the President, as
Commander-in-Chief of the Armed Forces.6 Congress should restore, as it
attempted to do when it enacted the DTA just six months ago, the
constitutional balance between the executive and judicial branches by
amending the DTA to clarify that federal courts lack jurisdiction over
habeas corpus petitions filed by detainees held outside of the
sovereign territory of the United States, no matter when those
petitions were filed.

II CONGRESS SHOULD CONFIRM THAT THE
PRESIDENT HAS BROAD AND FLEXIBLE AUTHORITY TO TRY ENEMY COMBATANTS
BEFORE MILITARY COMMISSIONS.

The second principal holding of
Hamdan is that the military commissions established by the President
are invalid because their structure and procedure do not comport in all
material respects with the Uniform Code of Military Justice ("UCMJ").
In reaching this conclusion, the Court rejected the government's
position that the Constitution, the UCMJ itself, and the Authorization
for Use of Military Force ("AUMF"), Pub. L. No. 107-40, 115 Stat. 224
(2001), authorized the military commissions established by the
President. 6 See The Prize Cases, 67 U.S. (2 Black) 635, 670
(1862) ("Whether the President in fulfilling his duties, as
Commander-in-Chief . . . [chooses] to accord to [aliens] the character
of belligerents, is a question to be decided by him, and this Court
must be governed by the decisions and acts of the political department
of the Government to which this power was entrusted . . . .").

The
Hamdan Court's invalidation of the President's military commissions
cannot be reconciled with the Court's earlier holding in Madsen v.
Kinsella, 343 U.S. 341 (1952), that, "as Commander-in-Chief of the Army
and Navy of the United States, [the President] may, in time of war,
establish and prescribe the jurisdiction and procedure of military
commissions, and of tribunals in the nature of such commissions." Id.
at 348 (emphasis added). Indeed, as the Court explained in upholding
the President's authority to convene a military commission to try a
Japanese war criminal after World War II, "[a]n important incident to
the conduct of war is the adoption of measures by the military
commander . . . to seize and subject to disciplinary measures those
enemies who, in their attempt to thwart or impede our military effort,
have violated the law of war." In re Yamashita, 327 U.S. 1, 11 (1946).
The Hamdan decision is also inconsistent with the Court's conclusion in
Ex Parte Quirin, 317 U.S. 1 (1942) (per curiam), that, in the UCMJ,
"Congress has explicitly provided, so far as it may constitutionally do
so, that military tribunals shall have jurisdiction to try offenders or
offenses against the law of war." Id. at 28. The Court's rejection
of the government's position that the AUMF authorized the President's
military commissions raises equally serious questions.

The
AUMF authorized the President to exercise his full war powers in
connection with the defense of the Nation from terrorist attacks. As a
plurality of the Court recognized in Hamdi, those war powers include
the authority necessary for "the capture, detention, and trial of
unlawful combatants." 542 U.S. at 518 (plurality op. of O'Connor, J.)
(emphasis added). A rational and reasonable reading of the AUMF is that
it endorsed the President's exercise of all his war powers, including
the establishment of the military commissions at issue in Hamdan. But
while the Hamdan Court recognized that the President's war powers
"include the authority to convene military commissions," 548 U.S. at _
(slip op. at 29), it nonetheless concluded that the AUMF did not
authorize any use of military commissions beyond those already
authorized by the UCMJ.

The Hamdan decision represents an
extremely cramped and unworkable interpretation of the expansive
authorization that Congress gave the President in the AUMF. The Court's
approach seriously diminishes the significance of the AUMF as a
Congressional endorsement of Presidential war powers, and it apparently
does so on the theory that the AUMF does not specifically mention and
enumerate each and every aspect of the President's wartime authorities
and responsibilities. Congress, however, gave the AUMF an expansive
scope precisely to ensure that the authorization it afforded the
President was as broad as necessary to permit the President to respond
to unprecedented and savage attacks and threats of future attacks. As
Justice Thomas stated in his dissenting opinion in Hamdan, "the fact
that Congress has provided the President with broad authority does not
imply--and the judicial branch should not infer--that Congress intended
to deprive him of particular powers not specifically enumerated." 548
U.S. at _ (slip op. at 3) (Thomas, J., dissenting). Yet that is
precisely what the Hamdan Court has done. The Court's unrealistically
narrow interpretation of the AUMF makes clear that any Congressional
response to Hamdan must expressly endorse and ratify the President's
authority to oversee the trial and punishment of enemy combatants.

Congress
should ensure that the President has broad discretion to try enemy
combatants in proceedings that he determines are appropriate, including
through utilization of the vehicle of military commissions. Congress
also should make clear that the President has expansive and flexible
authority to prescribe the rules and procedures governing military
commission proceeding.

A conspiracy charge is an especially
important prosecutorial tool in trials of high-level terrorist leaders,
who typically orchestrate a terrorist organization's deadly activities
without themselves participating in the attacks.

Congress
should not attempt to establish in an inflexible, rigid, and detailed
manner each and every detail of the structure and procedure of these
commissions. These determinations should be made by the Executive,
which requires the flexibility to develop, modify, and innovate
procedures and rules as circumstances and exigencies in the defense
from terrorism require.

Experience has unfortunately shown us
that terrorists are quick to adapt to our defenses, unprincipled in
their determination to use to their advantage any weaknesses in our
systems, and resourceful in their ability to exploit any fixed
procedures. An effort by Congress to legislate a comprehensive set of
rules and procedures, however well conceived and well intended, risks
locking the President into one set of procedures that, in time, may be
outdated, inappropriate, or unworkable for any number of reasons that
are simply unknown and unknowable today. Change would be difficult and
slow because the President likely would be required to return to
Congress to secure necessary amendments and modifications, and the
legislative process would need time to run its course. Therefore, to
the extent that Congress determines that it is appropriate to define
specific procedures for military commission proceedings, Congress
should authorize the President to deviate from those procedures in his
discretion, when necessary and appropriate.

The Founders
vested the President with primary responsibility to protect the
Nation's security and to conduct foreign affairs because the executive
branch has structural advantages the other two branches do not
have--including the "decisiveness, activity, secrecy, and dispatch that
flow from the . . . unity" of the executive branch. Hamdan, 548 U.S. at
_ (slip op. at 2) (Thomas, J., dissenting) (internal quotation marks
omitted). "Congress cannot anticipate and legislate with regard to
every possible action the President may find it necessary to take or
every possible situation in which he might act." Dames & Moore v.
Regan, 453 U.S. 654, 678 (1981). The structural advantages possessed by
the executive branch place the President in the best position to
specify the rules and procedures governing the trial of enemy
combatants.8 Congress should affirm this in its legislative response to
Hamdan. At a minimum, Congress should explicitly authorize the military
commission procedures established pursuant to the President's Military
Order of November 13, 2001. 66 Fed. Reg. 57,833.

Nothing in
my testimony is intended, or should be construed, in any way to
minimize the prerogatives and responsibilities of Congress or the
courts in our tripartite system of government. Both the legislative and
judicial branches have been endowed by our Founders with authority and
special capabilities in our balanced system. All three branches have
important roles to play in defending this Nation from terrorism and in
guaranteeing individual rights, freedom, and liberty.

But
each branch must be sensitive in discharging its respective role, to
allow the remaining branches most effectively to function as our
Constitution intended.

III CONGRESS ALSO SHOULD CONFIRM THAT THE GENEVA CONVENTIONS
OF 1949 DO NOT APPLY TO OUR NATION'S DEFENSE AGAINST TERRORISM AND ITS
CONFLICT WITH AL QAEDA AND OTHER TERRORIST ORGANIZATIONS.

The
third significant holding in Hamdan is that Common Article 3 of the
Geneva Conventions applies to our defense against terrorists such as al
Qaeda, whose principal tactics are inflicting injury and destruction on
vulnerable civilians and civilian targets.

The Court's
conclusion that Common Article 3 applies to stateless terrorist groups
committing sustained international attacks is directly contrary to the
official position of the executive branch. The President has formally
adopted the Justice Department's conclusion that the Geneva Conventions
do not apply to our Nation's defense against stateless terrorists, such
as al Qaeda and comparable organizations.

It has long been
the rule that "the meaning attributed to treaty provisions by the
Government agencies charged with their negotiation and enforcement is
entitled to great weight." Sumitono Shoji Am., Inc. v. Avagliano, 457
U.S. 176, 185-86 (1982). As Justice Thomas explained, courts should
defer to "the Executive's interpretation" of treaty provisions. Hamdan,
548 U.S. at _ (slip op. at 44) (Thomas, J., dissenting). The Court's
interpretation of Common Article 3 fails to accord any deference to the
views of the executive branch on this question, or, for that matter,
any aspect of the Executive's judgment and actions in the defense
against terrorism.

There are powerful arguments that the Geneva Conventions generally, and Common
Article 3 specifically, do not apply to the Nation's defense against
terrorists. Article 2 of the Geneva Conventions renders the full
protections of the Conventions applicable only to an armed conflict
between two or more "High Contracting Parties," and al Qaeda and its
counterparts are plainly not "High Contracting Parties."

Similarly,
Common Article 3 by its terms appears to apply only to a purely
"internal" armed conflict--such as a civil war--on the territory of a
signatory state, and not to an international conflict such as the
defense against international terrorism. As Judge Randolph explained in
the D.C. Circuit decision that Hamdan reversed, "The Convention appears
to contemplate only two types of armed conflicts"--international armed
conflict between signatories, and "a civil war." Hamdan v. Rumsfeld,
415 F.3d 33, 41 (D.C. Cir. 2005). The conflict with international,
stateless terrorists does not fall into either category.

Sound
policy considerations also support the conclusion that the protections
of the Geneva Conventions do not extend to stateless terrorist groups.
One of the key purposes underlying the Conventions is to encourage
combatants to conduct themselves in a manner that provides some
protection for civilians. Under the Conventions, "irregular forces
achieve combatant . . . status when they (1) are commanded by a person
responsible for subordinates; (2) wear a fixed, distinctive insignia
recognizable from a distance; (3) carry weapons openly; and (4) conduct
their operations in accordance with the laws and customs of war." The
Position of the United States on Current Law of War Agreements: Remarks
of Judge Abraham D. Sofaer, Legal Adviser, United States Department of
State, Jan. 22, 1987, 2 AM. U. J. INT'L L. & POL'Y 415, 465, 467
(1987). Terrorists, of course, do not comply with any of these
requirements, and they deliberately target civilians with violence.

Extending
the protections of the Geneva Conventions to terrorist groups endangers
civilian populations by removing the incentives these groups have to
observe the laws of war.

Indeed, it is precisely for this
reason--the increased danger to civilian populations--that the United
States has declined to ratify treaties that would extend the
protections of international humanitarian law to terrorist groups.

Most
notably, the United States has not ratified Additional Protocol I to
the Geneva Conventions, which covers "armed conflicts in which peoples
are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of
self-determination." Protocol Additional to the Geneva Conventions of
12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts. The United States has not ratified
Protocol I on the ground that it would "grant[] terrorist groups
protection as combatants" and "elevate[] the status of self-described
‘national liberation' groups that make a practice of terrorism,"
undermining efforts "to encourage fighters to avoid placing civilians
in unconscionable jeopardy." Remarks of Judge Abraham D. Sofaer, 2 AM.
U. J. INT'L L. & POL'Y at 465, 467. The Hamdan Court's conclusion
that Common Article 3 applies to stateless terrorists is difficult to
reconcile with the executive branch's long-standing position with
respect to Protocol I.

Moreover, the Geneva Conventions are
not now--and have never been regarded as--judicially enforceable. To the
contrary, the Geneva Conventions set out comprehensive and exclusive
state-to-state enforcement procedures that are to be carried out by the
political branches of the signatory states. By interpreting the UCMJ to
encompass the substantive protections of Common Article 3, but not the
exclusive enforcement procedures common to all four Geneva Conventions,
the Court, as Justice Thomas explained, "selectively incorporates only
those aspects of the Geneva Conventions that the Court finds
convenient." Hamdan, 548 U.S. at _ (slip op. at 41).

The
Court's determination that Common Article 3 applies to the war with al
Qaeda and other international, stateless terrorist organizations is
potentially very far-reaching. It opens the door to the possibility
that senior officials of the American government could be haled into
distant courts for violating the Conventions' requirements. Congress
can and should remedy this problem by confirming the President's
determination that the Geneva Conventions do not apply to the conflict
with stateless terrorist organizations--a determination that is more
faithful to the text and purpose of the Conventions than the conclusion
reached by the Hamdan Court. * * *

I would like to thank
the Committee for the opportunity to testify today and look forward to
answering any questions the Committee may have.